Back Off Government: What Municipal Lawyers Need to Know about Crown Patents
History and Law of Crown Patents: Some Questions and Answers
1) What is the basic historical context for the issuance of Crown grants and patents in the Province of Ontario?
In 1763, the Treaty of Paris ended the war between France and England under the Treaty. The French Crown relinquished any claim to present-day Ontario to England. By Orderin-Council, George III issued a Royal Proclamation, which created four new colonies, Quebec (previously named Canada), West Florida, East Florida and Grenada, established governments for those colonies, and dealt with the status of Indian lands in British North America.
In 1774, the British Parliament passed the Quebec Act, 14 Geo. 111 c.83, which greatly expanded the boundaries of Quebec. The British Crown then commenced efforts to install settlers in its newly acquired colonies by issuing to them grants of Crown land. The first Crown patents in Ontario were issued in the 1790s. In 1791, the British Parliament divided Quebec into Upper and Lower Canada, by the Constitution Act, 1791, R.S.C. 1985, App. II., No. 3. In 1792, British law was incorporated into Upper Canada by way of statute. Property rights were clearly a topic of great concern to the settlers, as the first Act enacted by the Legislature of Upper Canada provided that, “in all matters of controversy relative to property and civil rights, resort shall be and to the laws of England as the rule for the decision of same.” The legal underpinning for Crown patents, as well as the laws governing their validity, derived from England. In 1839, the imperial government passed the Crown Lands Protection Act, which made the Provincial Department of Crown Lands responsible for all lands. 1 Note: The historical research for this paper has been sourced from Constitutional Law of Canada, Peter W. Hogg, Carswell, 2000, the cases referred to herein, and the Archives of Ontario website at: www.archives.gov.on.ca.
In 1867, the British North America Act (now renamed the Constitution Act, 1867) was passed, creating a federal dominion and government for Canada. A number of sections within the British North America Act deal with Crown lands.
In addition to settlement grants, the Crown granted lands to: (1) veterans of certain military campaigns, such as the Fenian Raids and the Boer War, (2) railway companies; and (3) individuals from southern Ireland who required relief from poverty. The Crown also granted large tracts of land to non-government entities, who then sold those lands to settlers. The Canada Company, who was granted 2.5 million acres in southwestern Ontario, and Colonel Thomas Talbot, who was granted half a million acres, are two examples of private settlement promoters who sold lands in Ontario.
2) How did a settler obtain a Crown grant? What is the difference between a Crown grant and a Crown patent?
Obtaining ownership of land from the Crown entailed the following three stage procedure:
- In order to obtain a Crown grant, a settler first had to apply to the government by submitting a formal written request called a petition.
- A settler’s petition had to be approved by the Governor in Council which entailed obtaining an Order-in-Council and Fiat from the Attorney General (later called a Warrant), and a location ticket before a grant for the Crown land would be issued to the settler. The grant was essentially permission from the Crown for the settler to reside on a specific piece of land. The settler still had to fulfill all of the conditions imposed by the Crown, called settlement duties, before ownership of the land would officially be transferred by the Crown. The settlement duties included things such as: clearing the land, putting up buildings, and payment of settlement fees.
- Once the settlement duties were fulfilled by the settler, the Crown issued a patent, which officially transferred ownership of the Crown land into private ownership. Patents transferred the land in fee simple to the settler. However, patents were generally issued subject to reservations and exceptions set out in the terms of the patent. The Crown often reserved the mineral rights, mining rights, and timber rights on the land. Patents were also issued subject to conditions, such as land use conditions.
- The issuance of grants and patents both prior to and following Confederation in 1867 was authorized by a series of public land Acts.
The above-mentioned Crown grants and patents were originally authorized by statutes enacted by the British Parliament. Following Confederation, the government of Upper Canada authorized/issued grants and patents. This authority was subsequently transferred to the Province of Ontario. The authorizing legislation included the Public Lands Act (1853) and (1860), the Mining Act of 1869, 32 Vic (1868-69) CAP XXXIV, the Free Grants and Homesteads Act (1868), and the Act to Provide for the Appropriation of Certain Lands for the Volunteers who Served in South Africa and the Volunteer Militia 3 who Served on the Frontier in 1866 (1 Edward VII, c.6). The Public Lands Act and Mining Act continue to be in force and effect, although they have obviously been amended over the years.
3) Does the Crown have the authority to place reservations, exceptions and conditions on a Crown patent? How are these interpreted?
Yes. I have not found any cases where this authority of the Crown was disputed.
In Lieding v. Ontario,  O.J. No. 186 (Ont CA), the Court dealt with the issue of the proper construction of Crown grants. Finlayson J.A. reviewed case law dating from the 1850s onward, and found that the law is as follows:
- (a) In the event of an ambiguity, grants from subject to subject are construed in favour of the grantee, but grants from Crown to subject are construed in favour of the Crown [emphasis added]; and
- (b) There are certain exceptions to this rule, including the exception which permits construction in favour of the subject where valuable consideration has been given for the grant.
There is a body of case law on the interpretation of reservations and exceptions to the Crown in patents where the land contains beaches. An examination of these cases is beyond the scope of this paper, but the cases include Gibbs v. Grand Bend (Village) (1996) 26 O.R. (3d) 644 (Ont. CA) and Lanty v. Ontario (Minister of Natural Resources,  O.J. No. 4289 (Ont C.A.).
4) Are Crown patents issued subject to any restrictions or conditions aside from those listed in the actual patent?
Yes, there are a number of statutes that contain reservations affecting Crown patents, such as the Public Lands Act, the Mining Act, and the Land Titles Act (as discussed below). The Public Lands Act also voids certain reservations contained in Crown patents.
In Beaumaris Fishing Club v. Gravenhurst (Township),  O.J. No. 1427, the ownership of original road allowances was in dispute. Cavarzan J. relied upon Nash v. Glover,  O.J. No. 313 (discussed at page 5 of this paper) and noted that the Land Titles Act makes all registered land subject to a statutory reservation of any public highway. This was the law in Ontario in 1905 when the Crown patents to the disputed lands were issued to the private owners. At the time of the first Crown patents, the Crown owned the lands on which the roadways at issue were constructed and all of the unopened road allowances in the area. Cavarzan J. held that the first patentees of the lands received them subject to a statutory reservation and subject to any express reservations of public highways in the patents.
In Phinny v. Macaulay, O.J. No. 3629, a solicitor acting for a purchaser of real estate made a number of requisitions to the vendor. The Vendor responded to the requisitions but did not provide a satisfactory response to a requisition on whether the vendor held full fee simple ownership of the land on that basis. The purchaser, on the advice of his solicitor, refused to close the deal. The purchaser and vendor sued each other for the return of the deposit and damages. The purchaser cross-claimed against his solicitor seeking indemnity against the vendor’s counterclaim.
One of the main issues of the case was whether the vendor owned and was able to convey the full fee simple interest in the land, including the surface rights. The purchaser’s solicitor had requested copies of the Crown patents, but he initially made the request at the wrong government office. The solicitor eventually located the correct government office and made the same request. However, the solicitor did not obtain the Crown patents until the day of closing. Upon review of the Crown patent, the solicitor noticed a reference to “Mining” on the Remarks section of the title search abstract page. As a result, he reviewed the Mining Act of 1869 later that same day. He had previously advised the purchaser not to close the transaction since the first requisition was not validly answered. However, the solicitor failed to request an extension of time to consider the Crown patent and Mining Act of 1869, which he had not received until the day of closing. After reviewing the patents and mining legislation, he did not obtain nor did he fail to advise his client and seek further instructions from his client.
The Court held that in order to properly determine whether the lands were being granted in fee simple along with the surface rights, the solicitor was required to consult the Crown patents, together with the Mining Act of 1869 and the Crown Lands Plan. On review of these documents, the Court found that the vendor had owned the fee simple and surface rights in the property and the first requisition had been validly answered. The performance of the purchaser’s solicitor was held to be below the level of a reasonably competent solicitor and his delay in reviewing the patents and Mining Act of 1869 was an error (among others) for which he was negligent. The damages were assessed at $469,874.00 minus the purchaser’s deposit. The solicitor was obligated to indemnify his client for all damages recoverable by the vendors and payment of his client’s deposit.
I have included this case not because of the negligence issue and the resulting fear factor, but to demonstrate that Crown patents were not issued in a legal vacuum. The reservation and exception of certain rights, could not be interpreted on the basis of the patent without regard to any applicable statutory authority.
5) Constitutional authority for Crown lands –Who has jurisdiction? Who can pass legislation dealing with Crown patents?
The Constitution Act, 1867, (U.K.), 30 & 31 Victoria, c.3 allocated jurisdiction over all matters respecting Canada to the federal and provincial governments of Ontario, Quebec, Nova Scotia and New Brunswick. As discussed in the cases below, this Act has been interpreted to provide provincial legislatures with legislative jurisdiction over Crown 5 lands within their respective provinces. The Province subsequently delegated authority to municipalities to legislate on the matters within their areas of exclusive jurisdiction under the Municipal Act, 2001.
The case of Regina v. St. Catherine Milling and Lumber Company (1886), 13 O.A.R. 148 (SCC), confirmed provincial jurisdiction over provincial Crown lands located within each of the provinces. A majority of the appeal judges found that under the British North America Act that Crown lands within the Provinces were under the exclusive control and ownership of the Provinces. The majority referred to the following sections of the British North America Act:
- No. 5 of sec. 92: “The management and sale of Public Lands belonging to the Province, and of the timber and wood thereon.”
- No. 13 of sec. 92: “Property and civil rights in the Province.”
- Section 109: “All lands, mines, minerals, and royalties belonging to the several Provinces of Canada, Nova Scotia, and New Brunswick at the Union, and all Sums then due or payable for such Lands, Mines, Minerals, or Royalties, shall belong to the several Provinces of Ontario, Quebec, Nova Scotia, and New Brunswick in which the same are situate or arise, subject to any Trusts existing in respect thereof, and to any Interest other than that of the Province in the same.”
In Kennedy et al v. The Corporation of the City of Toronto et al,  O.J. No. 50, the Province’s ability to enact legislation affecting land that had been patented to the City of Toronto prior to Confederation was challenged. Ordnance lands (exclusive federal jurisdiction under s. 91 of the British North American Act) vested in the Crown were transferred by patent issued by the Province of Canada to the City of Toronto in 1858, prior to Confederation. The patent was subject to language restricting the use of the patent as a public park. The condition stated as follows: “Provided always, and this grant is subject to the following conditions…” In 1876, the Ontario Legislature passed an Act authorizing the City to lease, sell or otherwise dispose of the patented land. On the basis of that Act, the City chose to use the patented land as a cattle market and receive rent for it. A ratepayer brought an action to prevent the land from being used as a cattle market and to prevent the City from using public money on it. The ratepayer argued that that the land was granted to the City on the condition that the Crown could retake it and that the provincial legislation of 1876 permitting the lease, sale or disposal of patented land was ultra vires as the land was Ordnance land and thus under exclusive federal jurisdiction.
The Ontario High Court of Justice held that the matter plainly fell under the provincial jurisdiction of sec. 92 of the British North America Act: “Property and civil rights in the Province”, as the land ceased to be Ordnance land under federal jurisdiction as soon as it was granted to the City. The impugned Act of the provincial Legislature was subsequently upheld; and the City’s actions were confirmed? 6 Finally, there are a number of cases dealing with Crown patents and highways. While they are beyond the scope of this paper, it is worth noting that the case law has established that an original road allowance cannot be extinguished except by proceedings under the relevant Municipal Acts. Those Acts take precedence over a grant by the Crown . Nash v. Glover,  O.J. No. 313.
6) Once a Crown patent has been issued, can it ever be revoked or voided? Who has decision making power when there are disputes over patents?
Section 23(1) of the Public Lands Act empowers the Minister of Natural Resources to cancel a patent. If the Minister is satisfied that a purchaser, locatee or lessee of public lands, or any person claiming under or through a purchaser, locatee or lessee of public lands, has been guilty of fraud or imposition, or has violated any of the conditions of sale, location or lease, or of the licence of occupation, the Minister may cancel such sale, location, lease or licence, and resume the land and dispose of it as if the same had never been made, and upon such cancellation all money paid in respect of such sale, location or lease remain the property of the Crown and the improvements, if any, on the land are forfeited to the Crown.
Section 22 of the Public Lands Act empowers the Minister, and not the Courts, to determine all questions that arise as to the rights of persons claiming to be entitled to letters patent of land located or sold under this Act and the Minister’s decision is final and conclusive. These longstanding statutory powers date back at least as far as 1897.
In Fitzpatrick v. R.,  O.J. No. 38, the Ontario Supreme Court, cited a provision almost identical to section 22 of the Public Lands Act, R.S.O. 1897, ch. 28. The Court held that the Legislature, in giving the Minister jurisdiction to determine finally all questions which arise as to the rights of persons claiming patents, could not have intended the Court to also have jurisdiction over the matter. As a result, the Ontario Supreme Court had no jurisdiction to determine the question as to the claimant’s right to the patents claimed or to interfere with the Crown’s exercise of its discretion in the disposition of Crown lands. The petition was dismissed.
In the 2000 case of Mosher v. Ontario,  O.J. No. 170 (Ont SCJ), concerned a dispute over whether the Crown should have issued a patent to the claimant. McCartney J. held that section 22 of the Public Lands Act was a complete defence to the claimant’s action against the Crown.
In Chippewas of Sarnia Band v. Canada (Attorney General) (2000), 51 O.R. (3D) 641 (Ont CA), the Chippewas pursued a number of private and public law remedies to address the issuance of an allegedly void Crown patent of lands they claimed as their own. The Chippewas filed a Statement of Claim against the Crown in Right of Canada, the Crown in Right of Ontario, and all present landowners on the disputed lands. The Crown brought a motion for summary judgment and the Chippewas brought a cross motion. The reasons of Campbell J. on the motion at the Superior Court of Justice did 7 not make any reference to the Minister’s final and conclusive powers under the Public Lands Act. The Minister’s powers were not referred to anywhere in the reasons for decision of the motion’s judge. The Chippewas claimed ownership of a parcel of land located at the rear of their reserve. The disputed lands were occupied in the present day by over 2,000 different individuals, organizations and businesses, all of whom traced their title back to the Crown patent at issue. The Chippewas argued that because they had never surrendered the disputed lands to the Crown in advance of the patent being issued as required by the Royal Proclamation of 1763 and common law, their interest in the land was never extinguished and the Crown patent issued in 1839 was void.
The motions judge issued a declaration that the Crown patent was void ab initio and of no force and effect because there was no lawful surrender. Although the Chippewas were not entitled to a declaration of possession of the disputed lands, their action for damages against the Crown was permitted to continue. A declaration was also issued to the effect that the present day landowners held their title free and clear from any aboriginal title claims, as they were good faith purchasers for value without notice. The decision on the motion was appealed and cross-appealed. The Court of Appeal reversed the decision and declaration of Campbell J. that the patent was void ab initio.
The Court of Appeal agreed that there was never a proper surrender of the lands. However, it overruled the motions judge as to remedy. The Court of Appeal placed great emphasis on the pivotal role of patents in land transactions, and was unwilling to set aside the disputed patent to the detriment of so many future innocent purchasers. It stressed the fact that the patent was in the usual form and valid on its face, stating at para 248:
- The patent was issued as an exercise of Crown prerogative. The issuance of Crown patents to land was a routine governmental act. A Crown patent has been accepted from the earliest days of European settlement until the present as the foundation for title to land. For almost 150 years, successive purchasers have bought lands that were included in the Cameron patent without having any reason to suspect that the patent, and consequently their root of title, was in any way defective.
The Court of Appeal held that there were exceptional circumstances present that compelled the Court to withhold a remedy that would vindicate aboriginal title. The Court determined that the interests of the innocent third parties who had relied on the apparent validity of the patent must prevail over the Chippewas’ entitlement to a remedy that would set aside the Crown patent. However, the Chippewas’ claim for damages against the Crown was permitted to continue.
7) How does the existence of a Crown Grant or Patent of Land affect a municipal lawyer’s practice?
The Ontario Landowners Association (“OLA”) has recently sent letters to various municipal governments in Ontario asserting their rights to be protected from “any interruption, intrusion, legislation or regulation…as supported by the authority of the land/property owner’s Crown Land Patent Grant”. The OLA appears to be taking the position that because they hold the Crown patents to their lands (which they refer to as Crown land patent grants), legislation and municipal by-laws that would otherwise apply to their lands are inapplicable. Some excerpts of the letter are below:
The recent case of Her Majesty the Queen v. Mackie heard July 29, 2010, in Welland, Ontario Court of Justice before Justice of the Peace Shelley, involved a prosecution before the Provincial Offences Court. The defendant, Robert Mackie, was charged with operating an archery range on his property without a permit, contrary to the Niagara Escarpment Planning and Development Act. The Niagara Escarpment Commission issued a restoration order to Mr. Mackie, who failed to comply with it. His defence at trial echoed the position of the OLA; that provincial legislation is not applicable to 9 property that has been patented by the Crown. He provided a copy of the Crown patent issued in 1798 for his lands to Justice of the Peace Shelley and claimed that the patent was issued to the patentee to earn a livelihood from the land. As he earns his livelihood from the archery range on the land, he argued that municipal laws and regulations, including the Niagara Escarpment Planning and Development Act, do not apply to his property. The Crown patent granted the land to the patentee forever to have and to hold, and as a contract with the Crown, it superseded all provincial legislation.
The Court disagreed with this position, citing the fact that under the British North America Act, (renamed the Constitution Act of 1867), the provinces were given specific authority to enact legislation. Subsections 92(13) and (16) of the British North America Act provide legislative authority to control the use of land belonging to the province. The defence failed and Mr. Mackie was convicted. He has appealed the conviction and has received much support from the OLA in the media, including on their website.
8) Final thoughts
As I have tried to illustrate in detail, Crown patents are complex documents that play a paramount role in the province’s land registration system. They do not, and never have, existed in isolation. They were (and continue to be) intertwined with a larger legal framework of constitutional law, statutes, statutory interpretation principles, common law, history and real property law. The meaning accorded to the rights and obligations granted to a landowner in any Crown patent is tied to and affected by a host of statutes and other forms of government action. As a result, the rights and privileges set out in any particular patent must be considered together with the applicable statutory regime in order to understand the property owner’s actual rights.
Zella Phillips, Associate Solicitor, Town of Newmarket*